Brought Over from Debtorboards ( http://debtorboards.com/smf/index.php ) When evidence is introduced in Court, one critical element that must be established is the authenticity of the evidence. When the evidence changes hands from one party to another, that is the beginning of a concept called "Chain of Custody", and that chain must not be broken. The reason the Chain of Custody must be intact is that it eliminates (or isolates) the possibility of altering or falsifying the evidence. The ideal Chain of Custody would be like this: Q (to Mr Jones, President of OC): Are you the person who issued that invoice? A. Yes. Q: What did you do with the account? A. I sold the account to JDB1 on July 15, 2004 Q (to Mr Doe, President of JDB1): Did your company purchase this invoice? A. Yes, on July 15, 2004 Q: Is this a true and correct copy of what your company purchased? A. Yes. Q: What did your company subsequently do with the account? A. We sold it on August 9, 2005 to JDB2. Q (to Mr Roe, President of JDB2): Did your company purchase this invoice? A. Yes, on August 9, 2005. Q: Is this a true and correct copy of what your company purchased? A. Yes. Q: What did your company subsequently do with the account? A. We sold it on January 11, 2006 to JDB3. Q (to Mr Poe, President of JDB3): Did your company purchase this invoice? A. Yes, on January 11, 2006. Q: Is this a true and correct copy of what your company purchased? A. Yes. Q: What did your company subsequently do with the account? A. We presently are the owners of that account and are suing to collect the balance. This is a Chain of Custody. Notice the following: 1. The invoice is the evidence in question. 2. It takes a Human Being to testify as to the authenticity of that invoice. 3. The human being must have first-hand knowledge as to what is being testified to about that invoice. 4. That there are people there to testify as to the ownership and conduct around that invoice from its creation to the time of the trial. The "Chain of Custody" is unbroken. Notice that the testimony did NOT go like this: Q (to Mr Poe, President of JDB3): Do you recognize this invoice? A. Yes. My company purchased it from JDB2 on January 11, 2006. Q: Can you authenticate it? A: I was told by Mr Roe of JDB2 that he was told by Mr Doe of JDB1 that Mr Jones of OC assured him it was authentic. Q: So you have no first-hand knowledge on your own that this invoice is authentic, do you. A. No. In this instance the Chain of Custody has been broken. It was broken at JDB1, because there is the point where the ability to authenticate the evidence is lost - there is no person to testify to its authenticity. Merely being assured that it is authentic by someone else who has no first-hand knowledge of that authenticity is not sufficient. This is called "hear-say" evidence, and it is not admissible. The Achilles Heel that the JDB's have in Court is the Chain of Custody. The burden is on the party introducing the evidence to establish its authenticity, and by attacking the Chain of Custody, you will force a JDB to bring in Officers of all previous owners of the debt to establish the authenticity of the debt. If they can't (because the company is out of business and no officers can be located) or won't (because of the cost of bringing these people to the Court) then there is no one to testify as to the authenticity of the evidence and the Chain of Custody is broken. After establishing that the Chain of Custody is intact, the next question involves how the records were maintained and protected. This will necessarily have to be testified to by a Officer of the OC, since that is where the alleged debt was created and the books and records of the matter originated. What would this Office have to testify to? Generally, the following: 1. That the Officer testifying has personal knowledge of the methods used by the OC to maintain their accounts; 2. That the Officer testifying was employed by the OC ina capacity to have the knowledge in #1 at the time the alleged debt was created and thereafter until it was sold, and 3. That the officer in question personally examined the books and records as to this exact matter and has personal first-hand knowledge (like when the debt was incured, in what dollar amount, at what place, what was purchased with the debt, etc.... So, in a nutshell, here is the burden of proof the JDB has at trial: 1. They have to bring in as witnesses people who were officers of the OC at the time the alleged debt was created and at alltimes thereafter until it was sold who have first hand knowledge of the accounting policies, procedures and controls (no Marketing executives, please), plus 2. They have to bring in as witnesses people who were officers of each and every subsequent owner of the debt who were officers at the time each and every subsequent owner of the debt owned the debt to testify as to their first-hand knowledge of what their company purchased, when and how its accounts were maintained (once again, no Marketing executives, please) Then, each witness has to so testify (at the JDB's expense) as to their knowledge. You have the right to cross-examine each witness and impeach (bring into question) their testimony. How would you do that? You can (and should) determine that they were in fact employed by the company they say they were at the time the alleged debt was with that company; You can (and should) determine that they were employed in a position and capacity that would enable them to testify as to their own personal knowledge of their employer's recordkeeping and accounting practices; You can (and should) determine that they in fact remember the matter at hand - not what they were told to say. If they are familar with the account, they should be familiar with all aspects of the account (and you will get all this in Discovery, which you have already put the JDB through). Not remembering one detail brings into question the memory of all details. Q. Mr Jones - you testified that I allegedly purchased a sofa. What model and color? A:........ Q. Don't your records or memory indicate that? If you remember to the penny what this alleged sofa cost, why can't you remember details like the date it was allegedly delivered, its model or its color, or to where it was allegedly delivered? A:....... This works not only on the OC's officers, but on the JDB's also. Q. Mr Poe, you testified that your company purchased 1,750 accounts on January 11, 2006 and that this alleged debt was one of them. You also testified that you are familiar with all the debts purchased by your company on that date. Other than my name, address, social security number, amount allegedly owed and the company it is allegedly owed to, what else do you recall about this alleged debt purchase? Once again, if they will testify that they are familiar with the matter, they should recall it. There probably will be nothing else because that is what the JDB typically purchases. In summary, the concept of the Chain of Custody of a debt is a serious problem for a JDB in Court because of the trouble, time and expense of bringing the witnesses to Court who can establish the Chain of Custody. This weakness can be used to obtain a favorable settlement: "You have a choice - settle with me for 5 cents on the dollar - knowing you paid 2 cents - and save yourself the expense of a long drawn out trial where you will have to fly witnesses from the OC and every prior JDB in to testify - or see ya in Court."
See here, for example, where a request for summary judgement by Plaintiff,Palisades Collection, was denied. The reasoning is very instructive. http://www.courts.state.ny.us/reporter/3dseries/2005/2005_52015.htm "Decided on December 12, 2005 Civil Court of the City of New York, New York County Palisades Collection, LLC., A/P/O AT&T WIRELESS, Plaintiff, against Maria Gonzalez, Defendant. ..."
"... 58564 CV 2004 Ellen Gesmer, J. This case presents a set of facts and a pattern of evidentiary and pleading inadequacies commonly seen in the personal appearance part of the Civil Court. Plaintiff alleges that defendant owes money to AT&T Wireless (AT&T) on a cell phone contract. Plaintiff claims that it purchased the debt from AT&T and is suing defendant as AT&T's assignee. In her answer, defendant asserted that this matter had been settled and that she does not owe any money to AT&T. [FN1] Plaintiff now moves for entry of summary judgment in its favor. Plaintiff relies exclusively on an affidavit executed by one of its employees, and various documents which appear to have been created by AT&T. Since the affiant neither has personal knowledge of the facts nor can attest to the genuineness or authenticity of the documents, plaintiff has not made out its prima facie case. Therefore, even though defendant did not appear in opposition to this motion, it must be denied. CPLR § 3212(b) requires that a motion for summary judgment be supported by an affidavit of a person with requisite knowledge of the facts, together with a copy of the pleadings and by other available proof (Spearmon v Times Square Stores Corp., 96 AD2d 552, 553 [2d Dept 1981]) The movant must tender evidence, by proof in admissible form, to establish the cause of action "sufficiently to warrant the court as a matter of law in directing judgment" (see CPLR 3212; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "Failure to make such showing requires the denial of the motion, regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] Vitiello v Mayrich Constr. Corp., 255 AD2d 182, 184 [1st Dept 1998]). A conclusory affidavit, or an affidavit by a person who has no personal knowledge of the facts, cannot establish a prima facie case. (JMD Holding Corp. v Cong. Fin. Corp., 4 NY3d 373, 385 [2005]; Castro v NY Univ., 5 AD3d 135, 136 [1st Dept 2004]) A mere conclusory assertion of a fact, without any evidentiary basis, is insufficient. (Grullon v City of New York, 297 AD2d 261, 263 [1st Dept 2002]). When the affiant relies on documents, the documents relied upon must be annexed (Vermette v Kenworth Truck Co., Div. of Paccar, Inc., 68 NY2d 714, 717 [1986]; Afco Credit Corp. v Mohr, 156 AD2d 287, 288 [1st Dept 1989]), and the affiant must establish an adequate evidentiary basis for them. Mere submission of documents without any identification or authentication is inadequate. (Higen Assocs. v Serge Elevator Co., 190 AD2d 712, 713 [2d Dept 1993]). When the movant seeks to have the Court consider a business record, the proponent must establish that it meets the evidentiary requirements for a business record, by, [*2]for example, having a corporate officer swear to the authenticity and genuineness of the document. (CPLR 4518[a]; First Interstate Credit Alliance, Inc. v Sokol, 179 AD2d 583, 584 [1st Dept 1992]; Bowers v Merchants Mut. Ins. Co., 248 AD2d 1005, 1006 [4th Dept 1998]; A.B. Med. Servs., PLLC v Travelers Prop. Cas. Corp., 5 Misc 3d 214 [Civ Ct, Kings County 2004]). Plaintiff relies on an affidavit executed by Joanne Bergmann, [FN2] who identifies herself as the Vice President of plaintiff's Legal Department. She does not claim to have any personal knowledge of the transaction underlying this complaint but rather states that she is making the affidavit "based upon the books and records in my possession." She claims that she is familiar with plaintiff's methods for creating and maintaining its business records, including records of the accounts purchased by plaintiff. She then annexes and discusses various records. Through her affidavit, she seeks to establish four facts on which to ground plaintiff's claim: that defendant executed a contract with AT&T; that defendant defaulted in making payments under the contract; that AT&T sent defendant bills which defendant did not dispute; and that plaintiff is entitled to sue as AT&T's assignee. Ms. Bergmann's affidavit is not adequate to establish any of these facts. To establish the contract, Ms. Bergmann asserts that defendant entered into a contract with AT&T, and alleges that it is attached as Exhibit A. Her bald statement that defendant entered into a contract is not probative, since Ms. Bergmann acknowledges that she is simply relying on the documents in her possession. Moreover, the document attached as Exhibit A is equally ineffective to establish that defendant signed a contract, since it is merely an unsigned 9-page form, headed "Terms and Conditions for Wireless Service." Putting aside the question of whether Ms. Bergmann could properly authenticate a contract which appeared to be signed by defendant, her proffer of an unexecuted document certainly does not establish that defendant signed a contract with AT&T. Next, Ms. Bergmann seeks to establish that defendant is in default by making various conclusory statements to that effect and then attaching, as Exhibit D, documents she refers to as account statements which allegedly reflect the activity on defendant's account. On the simplest level, the Court cannot rely on Ms. Bergmann's description of the documents annexed as Exhibit D because her description is inconsistent with the documents themselves and with her own prior statements as to defendant's obligation to plaintiff. Specifically, she describes the documents as "account statements that reflect purchases made by defendant along with periodic payments. The statements reflect the finance charges on the balance as provided in the retail installment credit agreement." However, the account statements do not, on their face, reflect "purchases" but rather monthly charges for cell phone usage. Similarly, the account statements do not appear to be based on charges on a "retail installment credit agreement," but rather on a cell phone service plan. Consequently, since Ms. Bergmann has described incorrectly the document she claims to [*3]rely on, the Court will not credit the statements she makes based on it.[FN3] Even if the Court were to overlook the inaccuracy of Ms. Bergmann's description of the documents attached as Exhibit D, the Court could not rely on them. Since the documents are out-of-court statements offered for their truth, Ms. Bergmann must establish that they fall within an exception to the hearsay rule in order for them to be admissible. (Nucci v Proper, 95 NY2d 597, 602 [2001]). Presumably, Ms. Bergmann is asking the Court to treat them as a business record since she describes herself as being familiar with plaintiff's business records (CPLR 4518[a]; see Kraus Mgt., Inc. v State Div. of Housing & Community Renewal, Office of Rent Admin., 137 AD2d 689, 691 [2d Dept 1988]). However, the records attached at Exhibit D were created not by plaintiff but by plaintiff's assignor, AT&T. In order to establish a business records foundation, the witness must be familiar with the entity's record keeping practices (W. Valley Fire Dist. No. 1 v Vill. of Springville, 294 AD2d 949, 950 [4th Dept 2002]). Ms. Bergmann does not claim to be familiar with AT&T's record keeping practices, but only with the method by which plaintiff maintains the accounts it purchases from others. The mere fact that plaintiff obtained the records from AT&T and then retained them is an insufficient basis for their introduction into evidence. (Insurance Co. of North America v Gottlieb, 186 AD2d 471, 471 [1st Dept 1992]; Standard Textile Co. v National Equipment Rental, Ltd., 80 AD2d 911 [2d Dept 1981]; W. Valley Fire Dist. No. 1 v Vill. of Springville, 294 AD2d 949, 950 [4th Dept 2002]; see also United Bldg. Maint. Assocs. v 510 Fifth Ave. LLC, 18 AD3d 333, 334 [1st Dept 2005]).[FN4] Therefore, the Court cannot rely on the account statements which Ms. Bergmann proffered to establish defendant's default. Ms. Bergmann also asserts that the account statements were mailed to defendant and the statements were neither returned nor disputed. Presumably, Ms. Bergmann is making this statement in order to support a claim for an account stated. However, plaintiff's complaint does not include a cause of action for an account stated, so these statements by Ms. Bergmann are irrelevant. ..."
"... Even if plaintiff were asserting a claim for an account stated, Ms. Bergmann's statement [*4]would be totally inadequate to support it. Ms. Bergmann does not even assert whether she claims that the documents were sent by AT&T or by plaintiff, but, either way, her statements are not sufficient to establish mailing. As stated above, Ms. Bergmann does not claim to have personal knowledge of this account. Certainly, she does not claim to have mailed these statements herself. Where an affiant does not have personal knowledge that a particular document was mailed, she can establish that it was mailed by describing a regular office practice for mailing documents of that type. (Badio v Liberty Mut. Fire Ins. Co., 5 AD3d at 171; 8112-24 18th Ave. Realty Corp. v Aetna Cas. & Sur. Co., 240 AD2d 287, 288 [1st Dept 1997]; Residential Holding Corp v Scottsdale, 286 AD2d 679, 680 [2d Dept 2001]). However, Ms. Bergmann did not do that in this case. [FN5] Consequently, plaintiff has failed to prove that the account statements were in fact mailed to defendant. Finally, Ms. Bergmann claims that plaintiff is entitled to sue because of an assignment to it from AT&T. However, she does not attach a copy of the alleged assignment. In the absence of the document on which her statement is based, her statement is of no probative value (Vermette v Kenworth Truck Co., Div. of Paccar, Inc., 68 NY2d at 717; Afco Credit Corp. v Mohr, 156 AD2d at 288). Consequently, Ms. Bergmann has failed to establish that plaintiff has the right to collect this debt. Accordingly, plaintiff's motion for summary judgment is denied. Dated: December 12, 2005 ELLEN GESMER Judge, Civil Court ..." Footnotes Footnote 1:The cases similar to this one which appear in the Personal Appearance Part include those seeking to collect on debts arising from credit cards, car purchase notes and similar consumer transactions, in which the debt has been assigned to a third party, and the debtor files an answer disputing the amount owed, or, as in this case, the entire debt. Footnote 2laintiff also submits the affirmation of its attorney, Tess E. Gunther, but I will not discuss that since an affirmation by counsel is of no probative value on a motion for summary judgment. (Zuckerman v City of New York, 49 NY2d at 562 [1980]). Footnote 3:A further indication that Ms. Bergmann is, at times, describing a claim different from that at issue here is her statement, at paragraph 13 of her Affirmation, that defendant is liable for attorneys' fees "of a maximum 20% of the balance referred for collection." The agreement annexed to her affirmation includes no such provision. Footnote 4:This is not a situation where the relationship between the proponent of the record and the maker of the record guarantees the reliability of the records, such as where the maker of the record was acting on behalf of the proponent and in accordance with its requirements when making the records, (People v Cratsley, 86 NY2d 81, 89-91 [1995]) or where the proponent of the records relies contemporaneously on the accuracy of the other entity's records for the conduct of its own business (People v DiSalvo, 284 AD2d 547, 548-9 [2d 2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727, 728 [2d Dept 1986]). Here, there is no evidence that there was any relationship between AT&T and plaintiff at the time that the records were created. Footnote 5:Moreover, the account statements could not be a true copy of the documents allegedly mailed to defendant since they indicate, on their face, that they were printed out on June 29, 2005, after this action was commenced. ..."
This all seems to be great information indeed but the stark reality is that most judges pay no heed to whether or not the Plaintiff shown on the complaint is the true party of first interest in the case or whether or not he can prove his case, whether or not the affiant has first hand knowledge of the case or the account or anything other than whether or not the defendant owes the money. Another point that should be noted is that most if not all of the cases cited here are of little actual value to most defendants as they are county court cases, not rulings by appellate or higher courts and therefore do not establish compelling case law on any other court even in New York, much less in other jurisdictions. They are only advisory and no other court has to abide by their rulings. In essence they are about as compelling as the infamous Credit River case in which Justice of the Peace Mahoney ruled that Federal Reserve Notes are not money and therefore the Plaintiff had loaned the defendant nothing at all. Of course the bank appealed the decision but Justice Mahoney would not accept their appeal because they attempted to pay the court costs with Federal Reserve Notes instead of money. According to the story, it wasn't long before Justice Mahoney was forcefully retired from the bench due to his untimely death at the hands of unknown assailants. Of course, everyone knows it was the bank's hit squad that killed him. One should never trust legal theories or case cites to be found on any message board without checking both the argument and it's case cites as well as what the URL of the case cited is. If a case is shown on a URL such as http://www.courts.state.ny.us/reporter/3dseries/2005/2005_52015.htm then we can trust it because it comes from an actual court sponsored website. a url such as http://www.suijuris.net or http://www.freedomdomain.com/banking/credit_river1.html has a creditability rating of absolute zero. The legal theories they espouse are usually junk and are not only of little or no value but are often downright dangerous in that using them can get you sanctioned with heavy monetary fees attached. Attorneys love to demand that pro se defendants be sanctioned by the courts for using frivolous arguments they found on the internet. Such sanctions can include penalties of up to $25,000 or more and a requirement that the defendant not appear in any court of law without representation by competent legal counsel meaning an attorney. If that happens the defendant will usually be put in jail until he comes up with the money to pay the amount demanded. Such sanctions are often demanded but very rarely imposed by courts unless the conduct of the defendant is also outrageous in some other way. An idea of how rarely such sanctions are actually put upon the defendant is a federal case in which the defendants not only implored the court to overturn the ruling in a state case but also signed their name followed by the copyright sign which is another tired old ploy. That was a defendant who richly deserved to be sanctioned by the court but wasn't. The judge merely delivered them a stinging rebuke but didn't even mention sanctions. The question then becomes one of why this posting by Flyingifr can be quite true and effective and when can it be used effectively. It is true and effective in New York county courts which are known as Supreme Courts of whatever county, state of New York because New York has a state statute requiring plaintiffs to be the true party of first interest in the case and they do pay strict heed to that statute. Illinois and California courts also pay strict attention to such matters but residents of many other states are not so fortunate even though all states do have similar statutes but simply don't pay any attention to them. Junk legal theories are all over the internet and you should believe almost none of them. Junk legal theories also abound in our courtrooms as attorneys often quote cases that have little or no relationship to the case they are currently pleading. Attorneys and pro se litigants alike often fail to completely read and understand the cases they cite and the inferences they draw from them. Lower courts are likely to accept junk theories from attorneys without doing their own research into their validity but won't even listen to such pleadings by pro se litigants and won't read them either. The reason this is so is because our lower courts are heavily overburdened with debt collectors and junk debt buyers and they must dispose of a very large number of cases in as short a time as possible. A judge might easily dispose of fifty or a hundred or so cases in a single day. The judge opens court by calling his cases and seeing who is present and who is not, plaintiffs and defendants alike. Those cases in which the defendant is present are put on the back burner for that session and they will appear last. Then the judge quickly calls the first case on the docket, the attorney makes his case with a very simple statement and the gavel bangs down and the judge calls the next case. Cases in which the defendant does not appear usually takes less than 5 minutes. The agenda is usually arranged so that all cases filed by each attorney are heard at the same time and then the next attorney takes his turn disposing of all the cases he may have which have been scheduled to be heard that session. Once the courtroom has been cleared of all the easy stuff then those who wish to dispute get their turn. They usually don't fare much better than the defendants who didn't appear. If you hope to prevail against a seasoned attorney you must have almost absolute proof of what you say and you must know your Rules of Civil Procedure and your Rules of Evidence for both your state and county since they can vary even from county to county. And that is just the beginning of what you must know and be able to present in court. You should know them even if you hire an attorney to represent you in court. You can't even trust an attorney who advertises himself to be a consumer advocacy attorney unless he is someone such as Ed Combs in Chicago or Dean Malone in Texas or Robert Hyde in San Diego, Clifford Shepard in Indianapolis or other well known attorney. There are probably less than 200 consumer advocacy attorneys in the entire United States who can be trusted to do an effective job. Very few defendants demand that a court reporter be present at their hearing. This is a huge mistake because if their pleas are not on record before the court then an appeal is almost impossible to launch. This will anger many attorneys who will loudly proclaim to the judge that they didn't order a court reporter. Ordering the court reporter is usually done a day or two before the hearing date and usually isn't expensive. Getting the transcript is usually quite expensive but often not needed as it will help to "inform" the court and the Plaintiff's attorney that an appeal might be launched and helps keep them on their toes. Defendants should never go to court without a court reporter. If you fail to order one prior to the trial the judge will usually put off the hearing until one can be obtained if the defendant demands one be present. An exception to that is where the court itself provides an audio recording of all procedings and makes it available to the litigants if they ask for it and pay for a copy. The next step then becomes almost axiomatic. The defendant waits his turn and then tells the judge that he is well aware that the judge has read his briefs and pleadings but that he has a couple of points that he would like to stress by reading them into the record. As the Plaintiff's attorney rolls his eyes heavenward the defendant reads all of his pleading and argument into the record of the court. In doing so, he then hopefully estableishes his appeal. Pro Se litigants should always go into court mentally prepared to lose but well prepared to win if at all possible and being forced into an appeal. If he wins, so much the better. Arguments and case cites such as those proposed by flyingifr can and should be used as well as any others you can come up with but don't expect them to win because in most courts they won't. They should also not be used in filing your answer to the complaint. They need to be in your positive averments or other pleadings.
